Monday, May 31, 2010

Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.

Cohn witnessed and was disturbed by racism against African-Americans. At an early age, he became acutely aware that his own heritage was also perceived as alien in the South.

"You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."

Hey, that's pretty much the first five chapters of Sarah Silverman's new book (except she grew up in rural New Hampshire and is way cuter than Judge Cohn -- no offense).

Faced with the inability of two bickering attorneys to resolve even the most innocuous scheduling questions without his intervention, a Florida federal judge yesterday ordered the two to meet on the steps of the federal courthouse and resolve their latest quarrel by playing "one (1) game of 'rock, paper, scissors.' " (Read the ruling.)

Judge Gregory A. Presnell of Orlando ordered the unusual measure, which he characterized as "a new form of alternative dispute resolution," after the two Tampa attorneys had proven unable to agree upon where to hold a deposition, even though both of their offices are just four floors away in the very same building in Tampa. Defense attorney D. Lee Craig, of Butler Pappas Weihmuller Katz Craig, proposed holding the deposition in his office, but plaintiffs' attorney David J. Pettinato of Merlin Law Group wanted it to take place at the court reporter's office down the street.

Which is more humiliating -- "capitulating" to a juvenile power game played by opposing counsel and going to their office for a deposition, or having a federal judge order you to play "rock, paper, scissors" to resolve this inane discovery dispute?

Seriously, the paper's thin enough without having repetitive filler that serves no purpose whatsoever.

For that matter, I feel the same way about Tables of Contents and Authorities in briefs -- if your brief is 30 pages or less, and you are not in an appellate court that requires it, you are wasting everyone's time by clogging up the beginning of your document with something that no one ever looks at or refers to ever again.

Have you ever read a 25 page brief but suddenly went "where is Venetian Salami, I must find it immediately, I'm unable to simply skim the brief and find it quickly, there must be a mildly faster way -- YESSS!"

PETER VALORI, ATTORNEY, DAMIAN & VALORI LLP: Typically the person that you're trusting knows nothing of the fraud. They've been victimized themselves, but they just don't know it yet. So they make the perfect candidate to draw in new investors because they have no sense that what they're doing could potentially be harmful to their friend or family member.

Peter, you're a good guy and fine attorney, but come on, you definitely want to put your best face out there, know what I mean?

By Davis's estimate, it took 12-15 minutes to get from the rig to the work boat, but it would take another 36-40 hours before they were to return to shore – even though there were dozens of boats in the area and Coast Guard helicopters airlifting the most severely injured to hospital.

Some of the men were openly furious, while others, like Davis, were just numb. He says they were denied access to the onboard satellite phone or radio to call their families.

When the ship finally did move, it did not head for shore directly, stopping at two more rigs to collect and drop off engineers and coast guard crew before arriving at Port Fourchon, Louisiana.

The company was ready for the men then, with portable toilets lined up at the dock for drug tests. The men were loaded on to buses, given a change of clothing and boxes of sandwiches, and taken to a hotel in Kenner, Louisiana, where finally they were reunited with their families.

Lawyers say the isolation was deliberate and that Transocean was trying to wear the men down so they would sign statements denying that they had been hurt or that they had witnessed the explosion that destroyed the rig.

"These men are told they have to sign these statements or they can't go home," said Buzbee. "I think it's pretty callous, but I'm not surprised by it."

Davis had been awake nonstop for about 50 hours by that point. He signed. Buzbee says most of the men did.

Although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint—a slip and fall on property for which Riscomp was responsible.

At the time the agreed order was entered, the tenant was represented by attorneys at the firm of Rothstein Rosenfeldt Adler (“RRA”) in Ft. Lauderdale, Florida. On Sunday November 1, federal authorities seized the law firm premises in connection with an alleged Ponzi scheme carried out by the law firm’s senior partner, Scott W. Rothstein.

Turmoil at the law firm ensued. According to the attorneys, the firm no longer had an ability to issue trust account checks. It was therefore necessary for the tenant to obtain cashier’s checks to deposit in the court registry. On Monday November 2, the tenant obtained two official checks issued by Citibank, each in the amount of $21,400, for a total of $42,800. On November 3, the tenant provided these checks to counsel. Counsel arranged for one of the RRA law firm’s in-house couriers to deliver the checks to the registry of the court inMiami. The same day counsel served a notice of payment to the court registry and attached copies of the Citibank checks.

However, during the work day on November 3, the law firm employees were informed that they would no longer be paid. Many employees, including the one or ones responsible for delivering these checks, walked off the job. Accordingly the November 3 deadline passed without the checks being deposited in the registry of the court.

On November 4, counsel learned of the nondelivery of the checks. Counsel personally took the checks to the court registry in Miami on November 4 but the clerk refused to accept the checks because they were tendered a day late.

Judge Gersten says the "trial court may not consider the reasons why the deposit was not made," though he offers some "rachmones" to the displaced, totally-screwed tenant.

That's nice, says Judge Cope, but the tenant might have preferred a little justice with his schmaltz.

Tuesday, May 25, 2010

Turns out you can't just appeal the dismissal of your lawsuit when you have been given leave to amend and in fact have filed an amended pleading:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction. The district court's January 29, 2010, order, dismissing Peter Halmos's second amended complaint is neither final nor immediately appealable because it permitted him to file a third amended complaint, which is currently pending before the district court. SeeJUST ABOUT EVERY CASE I CAN THINK OF DEALING WITH APPEALS OF NON FINAL ORDERS.

David reports with sadness the death of Judge Edward B. Davis. Rump has additional thoughts here.

I echo what's been written.

I knew Judge Davis pretty well back when I was a lowly clerk kicking around the federal courthouse, and worked with him some in private practice as well.

He was everything that has been described, and more.

Although the word became a partisan weapon, I want to stress that the Judge had tremendous empathy -- towards clerks, lawyers, litigants, colleagues and pretty much everyone he met.

He made people feel comfortable, he related well to just about anyone, he was self-deprecating, modest, warm, funny as hail, filled with humility and good will. He understood how to talk to someone, he was just, fair, honest, smart as a whip and a straight shooter. His word was his bond.

Sunday, May 23, 2010

In fact, they're probably about as cutting-edge as cracking wise about airplane food.

That, plus the traffic in L.A.

Anyway, I was intrigued by Herald Executive Editor Anders Gyllenhaal's column today on the Pulitzers, in which he notes the "depth, precision and good writing that is part of the newspaper tradition."

As an editor, I'm sure Anders is proud of The Garvinator's story today on the new TV season, which includes this shining example of depth, precision, and good writing:

But even jaded lovers of lawyer jokes (Q: How can you tell if a lawyer is well hung? A: You can't get a finger between the rope and his neck!) will be glad to know that there's adequate legal representation available if all the homidical women on Spanish-language TV need to cross over.

Ha ha, oh boy that's a knee-slapper!

Putting aside that the joke is apropos of nothing, what's pathetic is that this lame, inappropriate effort at "humor" is contained in an article that otherwise decries TV's "slouching towards Gomorrah" slide into crude, vulgar, dumbed-down and offensive programming.

(Not that that would ever happen to our hometown newspaper, of course.)

The genome pioneer J. Craig Venter has taken another step in his quest to create synthetic life, by synthesizing an entire bacterial genome and using it to take over a cell.

Dr. Venter calls the result a “synthetic cell” and is presenting the research as a landmark achievement that will open the way to creating useful microbes from scratch to make products like vaccines and biofuels. At a press conference Thursday, Dr. Venter described the converted cell as “the first self-replicating species we’ve had on the planet whose parent is a computer.”

“This is a philosophical advance as much as a technical advance,” he said, suggesting that the “synthetic cell” raised new questions about the nature of life.

ORDERED AND ADJUDGED that the plaintiff shall reimburse the defendants $1300.00 in attorneys fees and costs associated with the plaintiff arriving 3.25 hours late for his deposition. “Rule 37(b)(2) provides a range of sanctions that a district court may impose upon parties and their attorneys for failure to comply with the court’s discovery orders.” Stuart I. Levin & Associates v. Ronald Rogers, 156 F.3d 1135, 1140 (11th Cir. 1998). Federal Rule of Civil Procedure 37(b)(2) provides in part that: “the Court should require the party failing to obey . . . to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

The plaintiff has failed to show substantial justification for failing to attend his deposition at the required time in April 2010. The undersigned awards the defendants 3.25 hours at a rate of $165.00 per hour for the time spent by attorney Adam Josephs, 3.25 hours at a rate of $200.00 per hour for the time spent by attorney Jay Green, and 3.00 hours at a rate of $40.00 per hour for the videographer, for a total award of $1300.001.

If I were Magistrate Judge O'Sullivan, I would have given Marc a few hundred too, just for having to sit there in excruciating agony while he's waiting for his client to show.

This morning, Mr. Goodman was arrested at the Four Seasons Hotel in Miami and charged with DUI manslaughter and vehicular homicide. (Click here to see the police photo.) He was released on $100,000 bail.

A quick review: Mr. Goodman was returning from a late night at his polo club when he crashed his Bentley into 23-year-old Scott Wilson’s Hyundai. Mr. Wilson’s car tumbled into a canal, where it laid upside down and caused Mr. Wilson to drown, police say. Mr. Goodman’s blood alcohol level was later tested and found to be at .177, well over the .08 legal limit.

Police say Mr. Goodman waited nearly an hour to call police and didn’t make an attempt to help Wilson.

Mr. Goodman’s attorney, the famed Miami defense lawyer Roy Black, said in a statement that “Mr. Goodman intends to vigorously defend himself against the criminal charges while continuing to do all within his power to minimize any further suffering by the Wilson family. After thoroughly reviewing the facts available to us, the defense team believes that the arrest warrant and charges reveal only a part of the whole story. Mr. Goodman is entitled to his day in court. We ask that the public and the media not rush to judgment until all of the facts are known.”

Petitioner is represented in the instant forfeiture proceeding by the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. ("Farmer Jaffe Weissing"). SFL note -- too long, fellas!! Farmer Jaffe Weissing have undertaken the representation of Petitioner, and more than forty (40) others similarly situation individuals (the "Farmer Jaffe Weissing Petitioners"), and has agreed not to take any portion of the subject trust fund for payment of the attorneys' fees incurred in this action. Rather, Farmer Jaffe Weissing will seek only a court awarded fee over and above the amounts owed to the Petitioners. Petitioners' counsel's interest in this proceeding is to obtain justice for the Petitioners, who seek the return of their settlement monies which were held in IOTA legal service trust accounts for their benefit by their former attorneys, Rothstein Rosenfeldt Adler, P.A. (RRA).

The decision below and the principle of law specifically announced as the basis for the conclusion is in express and direct conflict with every Florida decision that has previously upheld any extension of a statutory time period based upon procedural rules or considerations, such as rules which extend any statutory time deadline due to the status of governmental facilities being closed for weekends, holidays, disasters and otherwise, along with the myriad of other practical circumstances and situations that the judicial branch has addressed for as long as the judicial system has existed. There is also misapplication of law conflict with Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), and express and direct conflict with every other decision in Florida that has ever explained the concept of “tolling,” all of which are contrary to the decision below.

Other than that, the opinion's just fine!

Justice Lewis concludes with a bit of rhetorical flourish:

Litigants beware! The principles of law announced in the decision below have far reaching consequences. The principle of law announced by the court below may or may not be correct but it must be resolved to avoid the destabilizing effect of its application. Accordingly, I dissent because the destabilizing effect of the principles announced should be addressed.

Sheesh!

Let's try to figure out exactly what Justice Lewis is so upset about.

Mostly he's upset because the 3d DCA unequivocally stated the reason for the ruling is that the Florida Supreme Court lacks the Constitutional authority to alter statutory time periods.

Justice Pariente, in her concurrence, talks a lot about what Justice Lewis calls an "unstated subjective intent" -- that the extensions shouldn't be available to a litigant who does not allege that the bad weather impacted his or her ability to otherwise file within the statutory period.

Here is Justice Pariente:

The purpose of the administrative orders would not be served if a litigant could tack on days to a statute of limitations where the last weather emergency occurred six months before the expiration and the litigant does not allege that the delay in filing was based on any of the weather emergencies.

Justice Lewis says this is an after-the-fact justification contrary to the actual stated basis for the 3d DCA's ruling:

Justice Pariente goes to great effort to assert an unstated subjective intent in administrative orders contrary to the specifically stated principle of law articulated very clearly by the Third District as the reason and basis for its conclusion. Justice Pariente articulates an intent never voiced by the court below. When a court announces its decision and specifically states “We reach this conclusion because” followed by a clearly articulated principle of law, I read the words of the opinion rather than suggesting an unstated subjective intent.

This is funny, because I also questioned this aspect of the 3d DCA's ruling, and also wondered why a litigant would need to allege specific reliance on the extra emergency days.

The Miami scene -- the unique nightlife, culture and the scantily clad hotties -- can offer relationship-ending temptations that aren't as easily available in other parts of the country, he said.

"If you are from an area that doesn't have a nightlife, the beautiful people, the spending that's all around you and everything else, I think that's where you have the difference," said Rafool, senior attorney and managing member of Raymond J. Rafool, LLC. "When you're in a city like Miami, you have the opportunities that don't exist in other areas of the U.S."

He added, "It is sort of like in Miami there is much more fruit to pick than other areas."

I'm not sure The Hulkster's wife is technically a celebrity, but whatever.

On remand, if the existing record is sufficiently clear for the trial court to make the factual findings, the court may do so. If, on the other hand, the record is not sufficiently clear, then the record must be reopened for presentation of further evidence.

If, on the the third hand, the record has been lost and/or no one gives a darn anymore, the court can just ignore the whole thing.

In the spirit of goodwill and universal peace and understanding, I offer this polite correspondence to our Attorney General -- with a related note to our beloved 3d DCA entirely in Esperanto, the language of love (and Star Trek):

To Professor Gillers, Mr. McCollum is now obligated both as a lawyer and as a public official to alert the appellate court. “It is not enough for the attorney general simply to refrain from relying on the testimony in his brief and argument,” he said. “He has an affirmative duty to speak up.”

Ms. Wiggins, the spokeswoman for Mr. McCollum, said she could not comment further on pending litigation.

Could not comment -- that's it? Could you imagine a private litigant getting away with that?

President Obama opposes any move to bring back the so-called Fairness Doctrine, a spokesman told FOXNews.com Wednesday.

The statement is the first definitive stance the administration has taken since an aide told an industry publication last summer that Obama opposes the doctrine -- a long-abolished policy that would require broadcasters to provide opposing viewpoints on controversial issues.

"As the president stated during the campaign, he does not believe the Fairness Doctrine should be reinstated," White House spokesman Ben LaBolt told FOXNews.com.

Alana Joy, who started the Facebookprotest.com site organizing the June 6 event, said she is more upset about the way Facebook has made changes, rather than what's changed.

``Just because you post something online doesn't mean it's for the whole wide world to see,'' said Joy, a Los Angeles-based marketing strategist who doesn't use her full legal name online or professionally because of privacy issues.

Her biggest gripe?

``They also didn't explain them in changes that my 18-year-old sister and my grandmother can understand,'' Joy said.

``The problem is they never really present what's happening,'' said Leser, who is with the Miami Beach firm Leser Hunter Taubman Taubman. ``How about, `Hey, we're a free service, but this is how we use your information to sell ads -- that's how we make money.' ''

I printed out Facebook's privacy policy: it's five, single-space pages of type that's at least half the size of these newspaper characters.

Monday, May 17, 2010

I don't know Cathrin Lorentz but she's apparently a model who has sued Sunshine Health Products over the use of her image to promote a teeth whitening product called "Sunshine Smiles." (The complaint is here).

Magistrate Judge Torres entered one of those fancy docket/text/order thingies that very same day (probably using a judicial iPhone app):

ORDER denying 102 "Emergency" Motion for Protective Order. A discovery related matter is almost never an emergency under the Court's Rules. This motion is no exception, as the Federal and Local Court Rules provide a party with more than sufficient guidance in these situations. Nevertheless, upon review of the motion on an emergency basis, the Court will for the most part Deny it. The two hour deposition was necessitated by a discovery violation on the Plaintiff's part. Thus, Plaintiff has little standing to complain that Defendant should not be entitled to take the deposition in the manner in which it sees fit, consistent with the Rules. Nevertheless, to the extent the Plaintiff is claiming that she has not gotten sufficient notice of the deposition to make it financially reasonable for her to travel to the United States for that purpose, the Court will grant temporary relief by allowing her to provide three proposed dates in May or June (even if necessary after the discovery cutoff date) in which it will be reasonable for her to travel to Florida for the deposition, absent an agreement of the parties otherwise. Defendant shall take the deposition on one of those three proposed dates. The Court would note for the Defendant's benefit that Defendant appears to be quite optimistic as to the amount of discovery that will be required prior to the discovery cutoff date in the case, which optimism would be more realistic with accommodation and agreement with Plaintiff, which would be in Defendant's own interest. But the Court will, absent such cooperation, enforce the Rules, which of course means that the Court will not compel any discovery after the current cutoff date that will be strictly enforced except as provided in this Order.

When asked if empathy has a place in judicial rulings at the highest levels, Kennedy said absolutely. He said prison sentences in the United States are eight times longer than in other Western countries for the same crimes. “If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?”

I can't believe we will have to endure yet another silly season so soon after the last one, where Senators and talking heads make repeated, impassioned, empty oaths of fealty to the "rule of law."

It's funny, I happen to be midway through Robert Hughes' masterful account of the founding of Australia, The Fatal Shore.

The first part of the book looks at Georgian England and prevailing, Hobbesian attitudes toward the "criminal class" -- specifically the need to kill, isolate or banish criminals, who were thought to be born that way and incapable of rehabilitation.

Hughes writes of the excessively severe Georgian criminal code and the almost fetishistic devotion to the "rule of law" (at the expense of justice or reason):

Such legislation was part of the general tendency in eighteenth-century England: the growth of the Rule of Law (as distinct from any particular statute) into a supreme ideology, a form of religion which, it has since been argued, began to replace the waning moral power of the Church of England.

. . . .

Why did the judges weep with the accused? Because both were bound -- though not, of course, in equality of pain -- to the law. This drama of immutable rules lay at the heart of the tremendous power that Law held over the English imagination. The judge simply surrendered to the imperative of the statutes, a course of action that absolved him of judicial murder, and that caused him to weep. His tears humbled him not before the men in the dock, which would have been unthinkable, but before the idea of Law itself. When the Royal Mercy intervened as it commonly did, transmuting the death penalty into exile on the other side of the world, the accused and their relatives could bless the intervening power of patronage while leaving the superior operations of Law unquestioned. The law was a disembodied entity, beyond class interest: the god in the codex. The judge was invested with its numen, as a priest was touched by sacerdotal power. But he could no more change the law than a clergyman could rewrite the Bible.

Think of this the next time you hear someone who knows better prattle on about how judges must -- in every instance -- mechanically apply the "rule of law," as if it resides in the clouds waiting to be divined.

I've had this song stuck in my head the last few days (here in a beautiful arrangement set to the classic dance scene from Picnic), and it's impossible to not feel hopeful, romantic, and wildly optimistic listening to it.

When asked to predict the outcome of civil and criminal cases, lawyers are often too optimistic.

That's the result of a survey co-authored by Elizabeth Loftus, a University of California-Irvine psychologist and law professor, along with other academics, published this month in the American Psychological Association's Psychology, Public Policy & Law.

The article is titled "Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes."

“The higher the expressed level of confidence, the more likely lawyers were to fall short of their goals,” Loftus said in a UCI release about the survey. “In addition, male attorneys were found to be more overconfident than female attorneys.”

This strikes me as so empirically true.

How many times have you had to deal with a lawyer on the other side who is ridiculously overconfident of his chances of success?

Again, I recognize bluster serves a function and is part of the game, but at some point it actually enhances your cognitive decision-making process to realistically assess negative outcomes.

Scientists said that the size of the spill was directly related to the amount of damage it would do in the ocean and onshore, and that calculating it accurately was important for that reason.

BP has repeatedly said that its highest priority is stopping the leak, not measuring it. “There’s just no way to measure it,” Kent Wells, a BP senior vice president, said in a recent briefing.

Yet for decades, specialists have used a technique that is almost tailor-made for the problem. With undersea gear that resembles the ultrasound machines in medical offices, they measure the flow rate from hot-water vents on the ocean floor. Scientists said that such equipment could be tuned to allow for accurate measurement of oil and gas flowing from the well.

Richard Camilli and Andy Bowen, of the Woods Hole Oceanographic Institution in Massachusetts, who have routinely made such measurements, spoke extensively to BP last week, Mr. Bowen said. They were poised to fly to the gulf to conduct volume measurements.

But they were contacted late in the week and told not to come, at around the time BP decided to lower a large metal container to try to capture the leak. That maneuver failed. They have not been invited again.

Note to BP lawyers assisting in or facilitating this strategy: F^&K YOU.

Oh hail.

It must have been moonglow, way up in the blueIt must have been moonglow that led me straight to youI still hear you sayin', "Dear one, hold me fast"And I keep on prayin', "Oh Lord, please let this last"

Thursday, May 13, 2010

As the New Times reports, Gerald Posner has hired Rush to Judgment author Mark Lane to write a slightly oddball letter regarding allegations of plagiarism that have been lodged against the famous author.

"Most egregious was the email letter dated May 5, 2010, from Tim Elfrink, your staff writer for Miami New Times to Mr. Posner's publisher, Random House, making exaggerated charges of plagiarism and seeking to know what the publisher was going to do about it. That letter and other actions constitute tortious interference with a business relationship, tortious interference with a contractual relationship, intentional infliction of emotional distress and negligent infliction of emotional distress. A leading relevant case, Gerber v Keyes, was decided by a Florida appellate court and New York State ruled in a similar fashion in Wegman v Dairylea Cooperative, Inc."

"Mr. Posner is prepared to file a complaint and seek immediate discovery as to the basis and support for the campaign to destroy his opportunity to work in his profession," Lane's letter said.

Ok, no libel or slander claims, just a tough tortious interference allegation that will be very hard to prove (putting aside the question of damages).

Ironically, Posner will have to establish something close to bad intent for those claims to stick, even as his principle defense against charges of plagiarism has been the lack of that very intent.

Some media wags have focused (mockingly) on the final graf by the authors:

"I do have one further suggestion. Since the issue of the search for the truth may be of interest to you and since, as you must know, a committee of the United States Senate years ago and then again more recently, concluded that the CIA, the FBI and other intelligence agencies have assets pretending to be journalists embedded in the major news media, that might be a subject that could attract your attention.

Come on, folks, let's not exaggerate -- Judith Miller did not technically work for the CIA.

Given that we just saw the State blow $120k on dubious "expert" anti-gay adoption testimony, I don't want to overstate anything.

But is it too much to suggest that the State's furious scorched earth litigation strategy in defending the citrus canker lawsuits -- paying Adorno & Yoss hundreds of thousands of dollars (millions?) to force Bobby Gilbert to try multiple suits in different forums for the last six years -- ranks up there with one of the more colossally stupid wastes of taxpayer money in recent memory?

I guess I say that given the canker eradication program they have spent so much money vigorously defending at taxpayer expense -- a program that radically changed the landscape of South Florida -- was such a wanker in the first place.

As I've previously written, if you grew up in South Florida you probably remember orange, lemon, grapefruit, sour orange, blood orange, tangelo, those weird hard orange/lemon hybrid fruits, and all manner of citrus in your backyard, in your neighbor's backyard, in the empty yards, in the swales, on your way to school, on your way to your friend's house, and pretty much everywhere you went.

You could bike around the block and collect all the citrus refreshment/armed weaponry you needed in a matter of moments, and later on it turned out all that backyard fruit made a great marinade!

That should have been a big sign that something was rotten in the overly zealous way these cases were defended.

I have no idea why the State feels the need to so obstinately defend their questionable citrus canker program in the first place (pride/hubris from the decisionmakers involved?) but we are finally beginning to see the light at the end of the Wal-Mart voucher tunnel:

The Fourth District Court of Appeal unanimously held that some 55,000 Broward property owners are due $11 million for healthy trees felled by state chain saws from 1995 to 2006.

``Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them,'' the judges wrote. ``Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it.''

Confirming a widely held belief among property owners, the ruling said it was ``apparent from the history of this case that [the Department] destroyed these privately owned healthy trees not because they were `imminently dangerous' to anybody, but instead to benefit the citrus industry.''

Maybe now -- finally -- we have a window for the State to take a breath, reach out and turn off the Adorno litigation spigot and try to find a reasonable resolution to this fiasco?

Of course not:

``We respectfully disagree with the appeal court, and we will appeal it to the Florida Supreme Court,'' Florida Department of Agriculture spokesman Terence McElroy said, citing $44.5 million already paid on claims around the state.

Although the decision applies only to the Broward suit, plaintiffs' attorney Robert Gilbert said it will affect class actions pending in Miami-Dade, Palm Beach, Lee and Orange counties. He called the state's repeated appeals ``abusive.''

Florida ``wasted over $500 million destroying these trees, and millions more battling us in court,'' he said.

Why the reflexive, split-second reaction calling for an appeal? Is it more of the bury-your-head-and-keep-on-going legal strategy we've seen so far?

How about "we intend to carefully study the appellate opinion and confer as to what additional legal steps, if any, will be taken."

Obviously, the state's entitled to a defense and you need to find some numbers everyone can live with, but come on already.

You can read the entire opinion here, but I found the special concurrence by Judge Levine to be powerful:

I fully agree with the majority opinion, but I write to emphasize the clear legal right of the individual homeowner to receive just compensation as a result of the actions of the State. The State's actions in cutting down these trees most assuredly constituted "takings," whether under the regulatory takings or physical takings analysis, that demanded just compensation. Regardless of the type of takings denominated here, the result in this case must be the same — full and just compensation to the homeowners.

By requiring the State to abide by its constitutional obligation to compensate individual homeowners, we safeguard the property rights of all. "The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary." Joseph Story, The Value and Importance of Legal Studies (1829), in Miscellaneous Writings of Joseph Story 503, 519 (William W. Story ed., 1852).

Wednesday, May 12, 2010

I was talking to a prominent appellate lawyer the other day, when all of sudden the conversation took an odd turn...

Can I confess something? I tell you this as an artist, I think you'll understand. Sometimes when I'm driving... on the road at night... I see two headlights coming toward me. Fast. I have this sudden impulse to turn the wheel quickly, head-on into the oncoming car. I can anticipate the explosion. The sound of shattering glass. The... flames rising out of the flowing gasoline.

Right. Well, I have to - I have to go now, because I, I'm due back on the planet Earth.

With that let's get right to the robed ones and their weekly dispatches from the supercooled, super-swilled, all-terra firma bunker of justice:

Anyways, poor Ruby Hair (that's Ms. Hair, to you!) maybe missed a thing or two in responding to some discovery on her medical history, and BOOM -- the defendant moved to dismiss her whole case as a sanction and BOOM -- evidently Judge Cardonne agreed, and then everybody high-fived each other and/or otherwise forgot about it and then one day in band camp:

It cannot be overstated that dismissal of an action is a severe sanction, and should only be employed in extreme circumstances.

Oh oh:

While Hair’s discovery responses might preclude some of her claimed damages regarding her lower back, they do not address the issue of liability, nor address all of Hair’s claimed damages so as to justify dismissal of her action.

Indeed, any allegations against Hair regarding inconsistencies, non-disclosure or even falseness are more appropriately dealt with through cross-examination or impeachment before a jury – not through dismissal of her action.

Wild, cross-examination and impeachment -- what will they think of next?

Mr. Levitt informed the co-trustees’ counsel that the original Order signed by the trial court on April 13, 2009 had been lost and never placed “of record” and that he had decided to proceed ex-parte to obtain a replacement Order in order to be in a position to obtain a post-judgment Writ of Garnishment and execute upon the judgments. Indeed, Mr. Levitt relied exclusively on the May 5, 2009 Order in order to obtain a Writ of Garnishment to execute against the co-trustees’ assets.

On June 3, 2009, the co-trustees’ counsel filed a notice of appeal of the May 5 order. Jacobson v. Sklaire, Case No. 3D09-1528 (Fla. 3d DCA June 3, 2009). At the time that the notice of appeal was filed, the May 5 order was the only order filed of record or docketed in the trial court below.

In August, while examining the record prepared by the clerk for the appeal in 3D09-1528, the co-trustees’ counsel found that the April 13 order purportedly had been filed of record on April 16. A trial court clerk informed counsel that on July 10 the clerk’s office located the original April 13 order, which was stamped “filed for record” on April 16, and proceeded to docket the order as of April 16 based on the date stamp. Shortly thereafter, the co-trustees filed a verified motion to vacate the April 13 order pursuant to Florida Rules of Civil Procedure 1.540(a) and (b) based on clerical mistake and mistake, inadvertence, surprise or excusable neglect. Following a hearing, the trial court denied the motion.

Attorney General Bill McCollum Tuesday defended his personal intervention into the selection of an antigay expert witness in the case defending the state's gay adoption ban, saying his office "searched a long time" for someone and that George Rekers was the only one of two they could find.

Records show that McCollum personally requested that the state's Department of Children & Families hire Rekers at $300 an hour to help the state defend the case. When the agency balked at the price tag, McCollum's office persisted, ultimately leading to DCF paying pay him $120,000 over two years.

McCollum said that while he would not hire Rekers again knowing what he knows now -- that Rekers vacationed for two weeks in Europe with a gay male escort from Miami and received sexual massages from him -- he suggested that without Rekers the agency would not have been successful.

Note to Big Bill: the agency was not successful, and Judge Lederman found your $120k man to be thoroughly not credible (incredible?) as an "expert."

Also, if you can only find two "experts" -- total -- in the whole country willing to defend your position, maybe your position is insupportable?

Because of this, the Florida GLBT Democratic Caucus calls on McCollum to immediately refund the state of Florida $120,000 whether it’s from his campaign account or his own pocket.“Bill McCollum showed incredibly poor judgment when he hired Dr. George Rekers to spew hate-filled propaganda on the stand,” said Phillip Perry, spokesman for the Florida GLBT Democratic Caucus. “The only way that McCollum can make this right is if he immediately apologizes and pays back taxpayers for this egregious mistake. Floridians expect their leaders to spend taxpayer dollars wisely during these tough times, not waste it on hiring quacks posing as scientists to pursue a narrow, hate-inspired political agenda.”

You know what I always say: any stroke worth doing is worth doing slow, long, and well.